APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-3679)
Before Adams, Weis and Higginbotham, Circuit Judges.
Arthur Perry has appealed from the district court's denial of his petition for a writ of habeas corpus. Petitioner contends that he was deprived of his right under the Sixth and Fourteenth Amendments to a fair trial because the judge who presided at his trial had attended the funeral of petitioner's alleged murder victim. Although we share the dissent's concern that even the appearance of judicial bias be avoided, we do not believe that there was such an appearance of bias here as would deprive petitioner of his constitutional right to a fair and impartial trial. We will therefore affirm the order of the district court.
In affirming the judgment of the district court, we are mindful that our sole standard of review is whether there has been a "violation of the Constitution . . . of the United States." 28 U.S.C. § 2254(a). Thus we cannot exercise here the far broader supervisory powers that this court has over the federal district courts within our circuit. Under those supervisory powers, federal trial courts can be required to comport with standards far more rigorous than those set by the Constitution or by federal statute. See McNabb v. U. S., 318 U.S. 332, 341, 63 S. Ct. 608, 87 L. Ed. 819 (1942); U. S. v. Schiavo, 504 F.2d 1, 7 (3d Cir.) (in banc), Cert. denied, 419 U.S. 1096, 95 S. Ct. 690, 42 L. Ed. 2d 688 (1974). In all due respect and despite the thoughtfulness of his opinion, we submit that the dissenting judge seeks to enforce a standard that would be appropriate only if this court had supervisory powers to set standards for state trial courts even in the absence of a constitutional violation.
The Pennsylvania Supreme Court recited the events giving rise to this action as follows:
On February 9, 1972, two men entered the Choo-Choo Bar in Philadelphia. The first, later identified as the appellant Perry, ordered a beer and then left. Shortly thereafter, he returned and sat down toward the front of the bar. The second man, identified by the barmaid as Joseph Watson with whom the barmaid attended school, entered through the side door armed with a shotgun. Watson announced that there was to be a robbery and the two men ordered all the patrons into the restrooms at the rear of the bar. One patron, Douglas Alexander, an off-duty police officer, waited for the other patrons to get to the rear of the bar, then drew his service revolver and shot Watson in the left thigh. Watson fired his weapon at Alexander and fatally wounded him. Perry helped Watson to leave the bar and the two then fled in a stolen automobile . . . (W)hen the police, who were looking for Watson from the personal identification given by the barmaid, questioned Watson in the hospital, he gave a statement which not only incriminated himself but implicated Perry and gave the police an address where he might be found. Patrolmen were radioed, told of the information received from Watson and directed to apprehend Perry.
Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312, 314 (1976). In April of 1974, two years and two months after his arrest, petitioner was tried in the Court of Common Pleas of Philadelphia County and convicted by a jury on charges of murder, conspiracy, aggravated robbery and burglary. The trial judge, James T. McDermott, informed petitioner's counsel prior to trial that he had attended the funeral of the detective. Counsel moved that Judge McDermott disqualify himself. Judge McDermott denied the motion. He stated that his acquaintance with the detective "was only that as a witness who had oftentimes appeared here in court" and that such acquaintance "is totally irrelevant in the Court's mind to the question of the guilt or innocence of this defendant." Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312, 317 (Pa.1976).
The Supreme Court of Pennsylvania denied petitioner's contention that Judge McDermott's failure to recuse himself required the granting of a new trial. Commonwealth v. Perry, supra.*fn1 Petitioner then sought a writ of habeas corpus in the district court, the denial of which is the subject of this appeal.
Petitioner contends that actual prejudice is evidenced by the following actions of the trial judge:
1. Judge McDermott sentenced petitioner to life imprisonment on the murder count and from 10 to 20 years each on the robbery and burglary counts, the sentences to run consecutively.
2. Judge McDermott stated that although voluntary manslaughter was a possible verdict, in his opinion he did not ...